The opinion of the court was delivered by: Garaufis, United States District Judge.
Defendant Heriberto Torres ("Defendant" or "Torres") submitted a number of pretrial motions to the court on March 25, 2006. The United States ("Government") responded on May 12, 2006. The parties presented oral argument on the motions on May 19, 2006. At that time, I reserved decision on all motions. For the reasons set forth below, the Defendant's motions are granted in part and denied in part.
On June 30, 2004, custom officials in Miami, Florida found heroin inside a quilt that had been sent via courier service from Bogota, Colombia to 52-07 90th Street, Apartment 2A, Elmurst, New York ("90th Street Residence"). On July 6, 2004, Magistrate Judge Steven Gold signed an anticipatory search warrant authorizing a search of the 90th Street Residence in conjunction with a controlled delivery of the bag to that location.
On July 7, 2004, agents from the Immigration and Customs Enforcement section of the Department of Homeland Security ("ICE") attempted a controlled delivery of the package. The resident of the apartment (now a cooperating witness ("CW-1")) answered the door, but refused to accept delivery of the package. Later that morning, an ICE special agent called the phone number on the package and arranged to re-deliver the package to the same location in approximately ten to fifteen minutes. The ICE agents made a second attempt to deliver the package, at which point CW-1 accepted the package. Shortly after the successful delivery of the package, a white Jeep Cherokee with North Carolina license plates parked behind an ICE surveillance van parked near the residence. A man, since identified as the Defendant, exited from the car and peered into the van before driving away.
Some time later, a livery cab arrived at the 90th Street Residence. CW-1 dropped the package to the cab driver from the second floor balcony. ICE agents detained both the driver and CW-1 and questioned each of them. CW-1 revealed that at some point between the first and second attempted deliveries by the agents, an unidentified man in a white jeep had driven to the 90th Street Residence and asked CW-1 to accept delivery of the package. Then CW-1's cousin called and told CW-1 to give the package to the cab driver. While CW-1 was speaking with the agents, CW-1's cousin told an ICE special agent over the phone that the Defendant had contacted him to ask if he could receive a package at the 90th Street Residence.
The agents began to search the vicinity for a white jeep. An ICE agent saw the Defendant's jeep driving westbound on nearby Queens Boulevard in a counter-surveillance manner.*fn1 The ICE agent stopped the Jeep and placed the Defendant under arrest.
1. Suppression of Fruits of Arrest and Searches
Torres moves for the suppression of certain evidence, under the exclusionary rule, as improperly seized after a warrantless arrest without probable cause. (Torres Mot., at 4-5.) Torres specifically moves to exclude (1) his statements, allegedly made to Special Agents Klos & Pillot on the date of his arrest; (2) a handwritten document or note seized from the defendant while in custody; (3) photographs of Torres taken on the date of his arrest in 2004 and thereafter utilized for identification purposes, and (4) any identifications that took place. (Id., at 5.) The Government argues that there was probable cause to arrest Torres and therefore the exclusionary rule does not apply. (Gov't Mot., at 13-18.)
The exclusionary rule requires the suppression of evidence stemming from an arrest without probable cause, including evidence obtained as an indirect result of the arrest. See Wong Sun v. United States, 371 U.S. 471, 484-85 (1963). The exclusion applies to "tangible, physical material actually seized" as well as "items observed or words overheard" and "confessions or statements of the accused obtained during an illegal detention." United States v. Crews, 445 U.S. 463, 470 (1980); see also United States v. Fisher, 702 F.2d 372, 379 (2d Cir. 1983).
Where a police officer has probable cause to believe that someone has committed a felony in a public area, the officer may arrest that person immediately without a warrant. United States v. Watson, 423 U.S. 411, 418 (1976). If the officer lacks probable cause, however, the arrest is illegal and any obtained evidence is subject to the exclusionary rule. Probable cause "exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that (1) an offense has been or is being committed (2) by the person to be arrested." Fisher, 702 F.2d at 375.
Probable cause does not require a "prima facie showing of criminal activity" or a showing that it is more probable than not that a crime has occurred. United States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987). However, "it must constitute more than rumor, suspicion, or even a strong reason to suspect." Fisher, 702 F.2d at 375 (internal citation and quotations omitted). "In determining whether probable cause exists to believe that a particular person has committed a given crime, the Supreme Court has indicated that where the information possessed by the officers could have applied to any of a number of persons and did not reasonably single out from that group the person arrested, the arrest was not made with probable cause." Id. An officer's subjective intent in effectuating an arrest is irrelevant so long as probable cause to arrest exists. Arkansas v. Sullivan, 532 U.S. 769, 771-72 (2001).
In this case, Torres was arrested after the police had gathered the following information: between the two delivery attempts, an unidentified person had driven up to the apartment in a white jeep and asked CW-1 to accept delivery of a package; an unidentified person driving a white jeep with North Carolina plates had peeked into the surveillance van after the actual delivery and then drove off; CW-1's cousin called to tell the ICE agents that Heriberto Torres was the one who had asked him to accept delivery at the 90th Street address; and Torres was found nearby in a white jeep with North Carolina tags, driving in a "counter-surveillance" manner.
Together these factors support a showing of probable cause. Not only was Torres named by someone involved in the package delivery, but he was driving the type of car, with the same out-of-state license plates, that had previously visited the scene, and he was driving the car in a suspicious manner. Furthermore, after his arrest, but before the evidence in question was seized, Torres was identified by a federal agent as the same person who had previously peeked into the surveillance van, adding further weight to the prior ...